In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1015
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ERIC KELLY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:12‐cr‐50049 — Frederick J. Kapala, Judge.
____________________
ARGUED OCTOBER 2, 2014 — DECIDED NOVEMBER 26, 2014
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Based on evidence recovered dur‐
ing a police search of his apartment, defendant Eric Kelly
was charged with possession of crack cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); possession of
a firearm in furtherance of a drug trafficking crime, in viola‐
tion of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1). Although the
search was authorized by a warrant, Kelly seeks to suppress
2 No. 14‐1015
the seized evidence on Fourth Amendment grounds. He con‐
tends that the government failed to establish probable cause
to support the issuance of the warrant and that the search ex‐
ceeded the warrant’s scope. Because we conclude that the
warrant was valid and that the officers’ search was proper, we
affirm the district court’s denial of Kelly’s motion to suppress.
I. Background
On April 4, 2012, Detective Mark Jimenez of the Rockford
Police Department applied for a warrant to search the “up‐
per apartment” of a “multiple family residence” located at
1522 Clifton Avenue in Rockford, Illinois, for cocaine and a
wide variety of narcotics paraphernalia. Detective Jimenez,
an investigator in the Narcotics Unit, submitted a supporting
affidavit representing that he had been an officer with the
Rockford Police Department for twenty‐one years, during
which time he had been involved in the execution of over
700 narcotics search warrants.
Jimenez’s affidavit contained the following relevant in‐
formation suggestive of criminal activity at 1522 Clifton:
First, on February 9, 2012, a “concerned citizen” contacted
the Rockford Narcotics Unit and complained that “the resi‐
dence located at 1522 Clifton Avenue … is dealing drugs on
a daily basis.” Approximately six weeks later, on March 28,
2012, the police department received a welfare check com‐
plaint from a woman named Patsy Ibarra. Ibarra advised Of‐
ficer Amy Kennedy that Ibarra’s daughter, Precious Love,
“was possibly being held against her will” at the upper
apartment of 1522 Clifton by a black male named “Eric.” Ac‐
cording to Ibarra, her granddaughter, Sherona Barnes, had
knocked on the rear door of the building in search of Love.
Kelly, holding a 9mm handgun, answered her knock and
No. 14‐1015 3
yelled, “You almost got yourself shot!” With Love standing
behind him, Kelly slammed the door in Barnes’s face and
warned, “Go ahead and call the police, I’ll shoot them too.”1
Ibarra’s complaint prompted Officer Kennedy to visit the
residence. Love greeted Kennedy at the building’s rear
door—which was outfitted with surveillance cameras—and
denied that she was being held against her will. Officer Ken‐
nedy saw Love descend a set of interior stairs to reach the
rear door, leading Kennedy to conclude that Love had come
from the upper apartment.
Days later, Jimenez used a confidential informant to
make a controlled purchase of crack cocaine from 1522 Clif‐
ton, “upper apartment.” The informant—who had previous‐
ly aided the police department in securing several drug con‐
victions—called Kelly at his listed telephone number to ar‐
range a purchase of crack cocaine, but when he met Kelly at
the rear door of the building, Kelly told the informant that
he would not sell drugs from inside the apartment. They lat‐
er arranged to make the exchange down the street from 1522
Clifton. Officers observed Kelly walk from behind 1522 Clif‐
ton; enter a blue Buick, which was registered to him at a dif‐
ferent address; and drive to the agreed‐upon location. The
informant entered the Buick, remained inside for less than a
minute, and immediately returned to Jimenez’s undercover
vehicle. There, the informant revealed his purchase—a small
plastic bag containing a rocklike substance that field tested
positive for cocaine.
1 Barnes herself never spoke with the Rockford Police Department. Ra‐
ther, she conveyed these events to Ibarra, who then made the complaint.
4 No. 14‐1015
Jimenez asserted that, taken together, this information es‐
tablished probable cause that evidence of drug‐related crim‐
inal activity would be found at the upper apartment of 1522
Clifton Avenue. Jimenez’s supporting affidavit described the
precise location to be searched as
1522 Clifton Avenue, upper apartment, Rock‐
ford, Illinois[,] … a two story, white with red
siding and red trim, multiple family residence,
located on the east side of Clifton Avenue, with
the numbers “1522” located on the front of the
residence, and the upper apartment is located
on the second floor of this building.
Associate Judge Ronald J. White of the Circuit Court of Win‐
nebago County promptly issued a search warrant.
On April 6, 2012, Detective Jimenez and a team of Rock‐
ford police officers forcibly entered 1522 Clifton through the
building’s rear door. Once inside the outer door, the officers
encountered two staircases—one leading up to an upper in‐
terior door and the other leading down to a lower interior
door, which opened into the basement. They climbed to the
upper door, announced their presence, and forced the door
open. They were then standing inside Kelly’s apartment,
where they observed Kelly at the top of another internal
staircase, walking quickly from the apartment’s north bed‐
room to the south bedroom. Upon Jimenez’s order, Kelly ex‐
ited the south bedroom and surrendered to the officers. Ac‐
cording to Jimenez, it was at that moment that he realized
that Kelly lived not in an “upper apartment” but rather, in a
two‐story unit at the rear of 1522 Clifton. Although the offic‐
ers had correctly surmised that the building was divided in‐
to two apartments, they learned that it was in fact bisected
No. 14‐1015 5
into front and rear multi‐story units—not upper and lower
single‐story units, as Jimenez had asserted in the warrant
application.
Despite this realization, the officers continued their
search of Kelly’s apartment. In the north bedroom, Jimenez
noticed that a vent cover had been removed from the wall,
exposing a heating duct. Jimenez suspected that Kelly had
thrown contraband down the duct in a frantic attempt to
hide it from the officers. To determine where the duct led,
one officer threw items into the shaft while another walked
down to the building’s basement in an effort to hear the
items land on the other end. That officer entered the base‐
ment from the lower rear staircase and walked through an
unlocked door dividing the rear of the basement from the
front. In the front room—which contained a furnace, a wash‐
ing machine, and heating ducts—he heard the items
dropped from two stories above land behind a vent cover.
The officer took apart a portion of the ductwork and recov‐
ered a 9mm handgun and two bags of crack cocaine.2 In ad‐
dition to the items retrieved from the heating duct, the offic‐
ers discovered marijuana, crack cocaine, and extensive drug
2 The owner of the building at 1522 Clifton later clarified that the rear
portion of the basement was considered part of the rear apartment,
which Kelly occupied. The front portion—where the officer recovered
the contraband from the duct—belonged to the tenants of the front
apartment. The door between the two basement rooms was intended to
remain locked at all times. Based on this testimony, we conclude that the
front portion of the basement is properly characterized as the exclusive
province of the front apartment tenants. It is not, as Kelly contends, a
common area.
6 No. 14‐1015
paraphernalia on the first and second floors of Kelly’s
apartment.
Kelly moved to suppress all evidence the officers recov‐
ered, arguing that the search of all three levels of 1522 Clif‐
ton exceeded the scope of the warrant, which only author‐
ized a search of the nonexistent “upper apartment.” Follow‐
ing a suppression hearing, the district court denied Kelly’s
motion. The court determined that the erroneous description
of the unit as an “upper,” as opposed to a “rear,” apartment
was a mere technical error—and a reasonable one at that.
Detective Jimenez based his description of Kelly’s unit as an
“upper apartment” on statements made by both Officer
Kennedy and the confidential informant and there was no
doubt that the probable cause that Jimenez established ap‐
plied to the unit that the officers actually searched. Although
it became obvious once the officers entered the building that
they had been mistaken as to its layout, it was equally obvi‐
ous that they were in the originally targeted apartment—that
is, the apartment to which the rear door of 1522 Clifton led.
With respect to the contraband retrieved from the basement,
the court concluded that Kelly, who did not testify at the
suppression hearing, failed to demonstrate a reasonable ex‐
pectation of privacy in the basement’s front section. He
therefore lacked standing to challenge the seizure of the
items from the duct.
In light of the district court’s ruling, Kelly entered a con‐
ditional guilty plea pursuant to Federal Rule of Criminal
Procedure 11(a)(2), reserving the right to challenge the court’s
denial of his suppression motion. The district court sentenced
him to a total of 123 months’ imprisonment (composed of
concurrent 63‐month sentences on the drug possession and
No. 14‐1015 7
felon‐in‐possession of a firearm charges and a 60‐month sen‐
tence for possession of a firearm in furtherance of a drug
trafficking crime, to be served consecutively to the first two).
Kelly now appeals the denial of his motion to suppress.
II. Discussion
We review a district court’s denial of a suppression mo‐
tion under a dual standard of review: legal conclusions are
reviewed de novo, while factual findings are reviewed for
clear error. United States v. Freeman, 691 F.3d 893, 899 (7th
Cir. 2012).
A. Probable Cause
Kelly’s first contention on appeal is that the warrant appli‐
cation failed to establish probable cause for the search war‐
rant’s issuance.3 As a threshold matter, we must determine
3 On appeal, Kelly alleges numerous defects in Detective Jimenez’s sup‐
porting affidavit. First, he complains that the affidavit, which stated that
Kelly had a gun when he encountered Sherona Barnes, failed to mention
that Kelly had a prior felony conviction that would render his possession
of a firearm illegal. He also argues that Patsy Ibarra’s welfare check
complaint is suspect because Ibarra’s accusation that Love was being
held by Kelly against her will was based on second‐hand information
from Barnes, who never spoke with the police directly. Kelly further
challenges the reliability and veracity of the anonymous tip from the
“concerned citizen,” who made only a generalized allegation of drug
activity at 1522 Clifton. Similarly, Kelly highlights the fact that the confi‐
dential informant purchased drugs from Kelly’s car rather than from the
apartment, thereby failing to establish the necessary link between drug
activity and the apartment itself. Finally, Kelly complains that Jimenez’s
affidavit did not identify a lease or other records connecting Kelly to the
apartment. Therefore, Kelly concludes, the search warrant application
8 No. 14‐1015
whether Kelly raised the issue of probable cause—which the
district court did not address—in a manner sufficient to pre‐
serve the argument for appeal. Kelly concedes that before
the district court, he “unquestionably focused on the failure
to correctly identify the place to be searched” but argues that
“he neither waived nor completely neglected a probable
cause argument.” But Kelly never alleged in his motion to
suppress that the warrant application failed to connect his
residence to criminal activity. Rather, the sole references to
probable cause were made in the context of a broader argu‐
ment challenging the warrant’s particularity:
[T]he search warrant fails to describe the area
searched with the requisite particularity. The
warrant is explicitly limited to the upper
apartment, and no other portion of the resi‐
dence. The issuing court was not presented
with any evidence establishing probable cause
to search the basement of the building at 1522
Clifton Avenue in Rockford, Illinois. Nor was
the issuing court presented with any evidence
establishing probable cause to search the rear
apartment nor the first floor of the building lo‐
cated at 1522 Clifton Avenue … .
The essence of Kelly’s argument was that the warrant appli‐
cation, in its description of the residence as an “upper
apartment,” failed to accurately describe the apartment’s
did not establish probable cause that evidence of a crime would be found
in the apartment at 1522 Clifton.
No. 14‐1015 9
floor plan, not that the application failed to establish proba‐
ble cause of drug activity in the apartment.
In a strained effort to demonstrate that he preserved the
probable cause argument below, Kelly cites various isolated
comments by defense counsel at the suppression hearing
that could potentially be construed as challenging the war‐
rant application’s failure to establish a connection between
criminal activity and 1522 Clifton. At one point, defense
counsel highlighted the fact that Kelly’s Buick was registered
to a different address. Counsel also pointed out that “prior
to obtaining th[e] search warrant, no one in law enforcement
had personal knowledge of ever seeing Mr. Kelly in that unit
nor did they have any mail or other information tying Mr.
Kelly … to that apartment.” But once again, these remarks
were made in furtherance of the argument that the war‐
rant—on account of its erroneous description of the apart‐
ment’s layout—lacked sufficient particularity; defense coun‐
sel never attempted to tie the remarks to the independent
question of probable cause. Finally, in the brief conclusion
section of Kelly’s post‐hearing memorandum in support of
his motion to suppress, he noted that “no members of law
enforcement had any information that showed [he] was
listed as residing at 1522 Clifton.” Although these isolated
remarks could be construed as relevant to probable cause,
Kelly nowhere—neither in his initial briefing, during the
suppression hearing, nor in his post‐hearing briefing—
explicitly argued that the warrant failed for lack of underly‐
ing probable cause.
We have rejected similar arguments from other defend‐
ants seeking to demonstrate that they preserved issues for
appeal. In United States v. Murdock, a criminal defendant
10 No. 14‐1015
moved to suppress his confession on the ground that police
did not first administer Miranda warnings. 491 F.3d 694, 695
(7th Cir. 2007). On appeal, however, Murdock introduced a
new theory in support of his motion to suppress: his confes‐
sion, he claimed, was involuntary as a result of the “suspect,
intimidating, and overreaching conditions under which he
was held.” Id. at 698 (internal quotation marks omitted). In
an effort to argue that he had satisfactorily raised that theory
below, Murdock contended that his arguments before the
district court regarding the alleged Miranda violation were
“sufficient to encompass his argument on appeal.” Id. How‐
ever, we held this to be insufficient, concluding, “we see no
reason why trial counsel could not have broadened his ar‐
gument, and by failing to do so he gave the government no
reason to offer evidence to rebut his new allegation.” Id. at
698–99; see also United States v. Acox, 595 F.3d 729, 732–33 (7th
Cir. 2010) (rejecting defendant’s contention that his counsel’s
statements at trial came “close enough” to the argument
raised on appeal to preserve the question). Like Murdock’s
attempt, Kelly’s sporadic references to probable cause in the
context of a particularity challenge were insufficient to raise
the argument before the district court.
Yet this conclusion does not necessarily foreclose all ap‐
pellate review. We must next evaluate whether Kelly’s fail‐
ure to raise his probable cause challenge before the district
court amounted to a mere forfeiture of the argument—which
would typically entitle him to plain error review—or to a
waiver of the argument, which would preclude our review
entirely. United States v. Jaimes‐Jaimes, 406 F.3d 845, 847 (7th
Cir. 2005). Waiver occurs through an “intentional relin‐
quishment of an argument,” while forfeiture is characterized
No. 14‐1015 11
by a “neglectful failure to pursue an argument.” United States
v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005).
Kelly’s failure to present his probable cause argument
appears to have been a result of neglect, rather than a calcu‐
lated strategic decision. We can imagine “no sound reason—
indeed no reason at all—why [Kelly] would have opted to
bypass” the probable cause argument and instead rely solely
on his particularity challenge, Jaimes‐Jaimes, 406 F.3d at 848,
which renders his omission more akin to forfeiture than
waiver. However, because the forfeited argument here is a
suppression argument, we face a “special situation” as a re‐
sult of the operation of Federal Rule of Criminal Procedure
12(e). Murdock, 491 F.3d at 698. Under Rule 12(e), if a de‐
fendant fails to raise a suppression argument below—even if
he does so under circumstances that suggest a forfeiture—
we cannot proceed directly to a review of the district court’s
actions for plain error.4 Before we may conduct a plain error
review, “the defendant must first show good cause for fail‐
ing to make that argument in the district court.” Murdock,
491 F.3d at 698. Kelly has offered no explanation—let alone
a persuasive one—for trial counsel’s failure to challenge
4 Federal Rule of Criminal Procedure 12(e) establishes that a party
“waives” a suppression argument not timely raised before the district
court; such waiver may only be overcome by a showing of “good cause.”
As we have noted, this “use of the word ‘waiver’ when one actually
means ‘forfeiture’ has led to some difficulty distinguishing the two terms.”
Murdock, 491 F.3d at 698. Although Kelly’s failure to raise the probable
cause argument below constitutes a forfeiture in the traditional sense,
Rule 12(e) prevents us from automatically undertaking plain error
review.
12 No. 14‐1015
probable cause. See id. at 698–99. We are therefore foreclosed
by Rule 12(e) from any review of whether the government
established probable cause to support the issuance of the
search warrant.
But even assuming that Kelly could demonstrate good
cause for failing to raise the argument below, he cannot
show that the district court committed plain error. A district
court does not engage in de novo review of an issuing
judge’s conclusion that, based on the totality of the circum‐
stances, there was a “fair probability that contraband or ev‐
idence of a crime w[ould] be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Rather, in reviewing
the issuing judge’s probable cause determination, the district
court need only evaluate whether the judge had a “substan‐
tial basis” for concluding that probable cause existed. Id. at
238–39 (quoting Jones v. United States, 362 U.S. 257, 271
(1960)). “Warrants may be issued even in the absence of di‐
rect evidence linking criminal objects to a particular site.”
United States v. Orozco, 576 F.3d 745, 749 (7th Cir. 2009) (cita‐
tion and internal quotation marks omitted). And courts are
“entitled to draw reasonable inferences about where evi‐
dence is likely to be kept, based on the nature of the evi‐
dence and the type of offense, and specifically, in the case of
drug dealers, evidence is likely to be found where the deal‐
ers live.” Id. (citation and internal quotation marks omitted).
Detective Jimenez’s affidavit establishes a reasonable
probability that Kelly dealt drugs. Just days before Jimenez
filed his warrant application, officers observed Kelly emerge
from behind 1522 Clifton, enter his Buick, drive to meet a
reliable informant at a predetermined location, and sell the
informant crack cocaine. The informant had previously met
No. 14‐1015 13
Kelly at the rear door of 1522 Clifton and, although Kelly
represented to the informant that he would not sell drugs
from the apartment, he made clear to the informant that he
would be happy to arrange a sale in the neighborhood.
Jimenez also concluded, based on his twenty‐one years in
law enforcement and his execution of over 700 narcotics
search warrants, that drug dealers are likely to keep contra‐
band in their residences. Because issuing magistrates are en‐
titled to take into account the knowledge and experience of
police officers when making the probable cause determina‐
tion, see United States v. Lamon, 930 F.2d 1183, 1189 (7th Cir.
1991), Jimenez’s observation, taken together with the facts
and circumstances surrounding the informant’s controlled
purchase of crack cocaine, certainly creates a “fair probabil‐
ity” that drugs or drug paraphernalia would be found at
1522 Clifton.
Even without taking into consideration the anonymous
tip from the “concerned citizen” or the welfare check com‐
plaint from Patsy Ibarra,5 Jimenez’s affidavit contained far
5 Kelly alleges that reports from both the “concerned citizen” and Ibarra
are inherently unreliable, due largely to the anonymity of the former and
the second‐hand nature of the latter. In United States v. Singleton, 125 F.3d
1097 (7th Cir. 1997), we set forth a series of factors indicative of whether
an informant’s report is sufficiently reliable to support a magistrate’s
finding of probable cause. These factors include: “(1) personal observa‐
tion by the informant; (2) the degree of detail given; (3) independent po‐
lice corroboration of the informant’s information; and (4) the informant’s
testifying at the probable cause hearing.” Id. at 1103–04.
With respect to the vague tip from the anonymous “concerned citi‐
zen,” the Singleton factors admittedly cut in Kelly’s favor. Ibarra’s wel‐
fare complaint presents a closer case. Ibarra provided an exceptional
14 No. 14‐1015
more evidence to support the issuance of a search warrant
than we have required in other cases. In United States v.
Orozco, for instance, an affidavit in support of a search war‐
rant application stated that reliable sources had identified
the defendant as a “large‐scale drug trafficker” from whom
they had purchased drugs “in the recent past.” 576 F.3d at
748. This information, combined with the FBI Special Agent
affiant’s representation that high‐ranking gang members of‐
ten keep evidence of drug activity in their homes, persuaded
us to uphold the magistrate judge’s probable cause finding—
even though the agent’s belief was “the only support for a
link between Orozco’s home and the sought‐after evidence
of drug dealing.” Id. at 748–50. Detective Jimenez’s affidavit
offered far more concrete evidence suggesting that Kelly
kept drugs and drug‐related paraphernalia at 1522 Clifton.
We therefore conclude that the affidavit plainly established
probable cause to support the issuance of the warrant.6
amount of detail, some of which was corroborated by Officer Kennedy
when she investigated the residence herself, but Ibarra did not personal‐
ly observe Kelly’s actions, nor did she testify at the probable cause hear‐
ing. We need not weigh these competing factors here, however, because
we conclude that—exclusive of the information contained in Ibarra’s
complaint—Jimenez’s affidavit set forth sufficient facts to support the
issuing judge’s finding of probable cause.
6 Both parties’ briefs discuss in detail whether, in the absence of probable
cause, the good‐faith exception—which preserves evidence recovered
during a search pursuant to a defective warrant that was obtained by an
officer acting with objective good faith, see United States v. Leon, 468 U.S.
897, 920 (1984)—would save the officers’ search of 1522 Clifton. Because
we conclude that probable cause in fact existed, the good‐faith exception
is not implicated here.
No. 14‐1015 15
B. Scope of the Warrant
Kelly next contends that even if the warrant was sup‐
ported by probable cause, the officers’ search exceeded its
scope, which authorized a search of only the “upper apart‐
ment” at 1522 Clifton. Kelly first claims, as he argued before
the district court, that the warrant fails for want of particu‐
larity. The Fourth Amendment requires that a warrant “par‐
ticularly describ[e] the place to be searched.” U.S. Const.
amend. IV. Kelly argues that because the warrant identified
that place as the “upper apartment” of 1522 Clifton, which
(as it turns out) does not exist, the warrant was invalid from
the moment it was issued. However, the particularity re‐
quirement was not intended to protect against the error at
issue here—that is, where a warrant supported by probable
cause fails to reflect the precise floor plan of the premises to
be searched. Rather, the “manifest purpose” of the require‐
ment is to prevent “the wide‐ranging exploratory searches”
that the Framers faced and to limit each search “to the spe‐
cific areas and things for which there is probable cause.”
Maryland v. Garrison, 480 U.S. 79, 84 (1987).
The Supreme Court does not demand exact precision in a
search warrant’s description of the targeted premises. In‐
stead, it has found the particularity requirement to be satis‐
fied if the warrant’s description “is such that the officer with
a search warrant can, with reasonable effort ascertain and
identify the place intended.” Steele v. United States, 267 U.S.
498, 503 (1925). Our own precedent confirms that minor
technical errors or omissions do not automatically invalidate
a warrant so long as there is no danger that the officers
might inadvertently search the wrong place. In United States
v. Johnson, a warrant to search both the upper and lower
16 No. 14‐1015
units of a two‐story residence identified the address as “2958
N. 23rd Street.” 26 F.3d 669, 692 (7th Cir. 1994). While this
was the correct address for the lower unit, the upper unit’s
address was technically 2958A. Id. at 694. Despite this error,
we upheld the search warrant with respect to both units:
[W]e note that the warrant did describe the
place to be searched with particularity stating
that the house was “a two‐family residence
with beige siding and brown trim; the number
2958 appearing on the west side.” The only
problem with the description was that it did
not include the fact that 2958A is the address of
the upper unit. This omission, however, is not
fatal for the warrant accurately described the
house to be searched and there was no risk that
the officers executing the warrant would
search some other house.
Id. While Johnson dealt with the omission of the upper unit’s
address rather than a misstatement regarding the layout of
the targeted residence, its reasoning is applicable here. De‐
tective Jimenez knew that the target of his search was the
unit—be it the “upper” unit or the “rear” unit—to which the
rear door of 1522 Clifton led. And because Kelly’s apartment
was the only unit accessible from the rear door of the build‐
ing, the mislabeling presented “no risk that the officers exe‐
cuting the warrant would search some other house.” Id.
The Supreme Court has upheld the validity of warrants
in far closer cases. In Maryland v. Garrison, the Court upheld
an overbroad warrant that described the apartment to be
searched as “2036 Park Avenue third floor.” 480 U.S. at 80.
What police officers did not realize prior to the warrant’s
No. 14‐1015 17
execution was that the third floor of 2036 Park Avenue in
fact contained two apartments. Id. After acknowledging that
the warrant’s description was “broader than appropriate be‐
cause it was based on the mistaken belief that there was only
one apartment on the third floor,” the Court nevertheless
concluded that the factual mistake did not invalidate a “war‐
rant that undoubtedly would have been valid if it had re‐
flected a completely accurate understanding of the build‐
ing’s floor plan.” Id. at 85. The Court emphasized that its
finding of validity depended on the information available to
the officers at the time they applied for the warrant—
“[t]hose items of evidence that emerge after the warrant is
issued have no bearing on whether or not a warrant was val‐
idly issued.” Id. As in Garrison, the warrant to search Kelly’s
apartment would “undoubtedly” have been valid if it had
identified the unit to be searched as a “rear,” as opposed to
an “upper,” apartment. The fact that the building’s layout dif‐
fered from what the officers were able to discern without hav‐
ing been inside is insufficient to render the warrant invalid.7
7 Kelly contends that the officers could have discovered the precise lay‐
out of 1522 Clifton, either by contacting his landlord or by obtaining the
building’s floor plans. But Detective Jimenez testified at the suppression
hearing that, based on his experience, he does not contact landlords of
buildings for which he seeks search warrants out of fear that they might
warn tenants of the impending search by, for example, confronting ten‐
ants about engaging in potentially illegal behavior on the rental proper‐
ty. Moreover, Kelly cites no authority to support the proposition that
officers must go to such lengths to ascertain a building’s internal layout,
and there is no evidence concerning where a floor plan for 1522 Clifton
might be found, if it exists at all.
18 No. 14‐1015
Our conclusion that the warrant was valid based on the
information available to the officers at the time of its issu‐
ance does not, however, address the independent inquiry of
whether it was executed in a reasonable manner. See id. at 84
(noting that “the case present[ed] two separate constitutional
issues, one concerning the validity of the warrant and the
other concerning the reasonableness of the manner in which
it was executed”). Kelly argues that the Fourth Amendment
required the officers to halt their search upon the realization
that they were in a “rear” apartment—or, at a minimum, to
search only the “upper” level identified in the warrant. He
cites Garrison for this proposition because there, the Supreme
Court obliged the officers to discontinue their search when
they learned that the layout of the building differed from the
warrant’s description—that is, that the third floor contained
two apartments instead of one. See id. at 87.
Yet although Garrison also presented a situation of mis‐
taken floor plans, the parallels with the instant case end
there. In Garrison, the officers sought a warrant to search the
apartment of Lawrence McWebb, which they reasonably be‐
lieved to occupy the entire third floor of 2036 Park Avenue.
Id. at 80. However, they inadvertently searched—and found
contraband in—the apartment of Garrison, which was also
located on the third floor but was not the intended target of
their search. Id. at 81. The Supreme Court concluded that the
Fourth Amendment compelled the officers to suspend their
search upon realization of their mistake not because they
had misunderstood the building’s layout but rather because
they had been searching the wrong apartment—a search
concededly unsupported by probable cause. Id. at 86–87.
And notably, even despite this grievous mistake, the Court
permitted the government to prosecute Garrison based on
No. 14‐1015 19
incriminating evidence found in his apartment before the
officers discovered their error. See id. at 80, 88.
The Garrison Court nowhere suggested that if, after dis‐
covering the mistaken layout, the officers had been able to
confirm that they were in the targeted apartment
(McWebb’s), a continued search of that apartment would
have been improper. In fact, the Court concluded that “[i]f
the officers had known, or should have known, that the third
floor contained two apartments …, and thus had been aware
of the error in the warrant, they would have been obligated to
limit their search to McWebb’s apartment.” Id. at 86 (emphasis
added). Therefore, contrary to Kelly’s contention, Garrison
supports the reasonableness of the search conducted here.
The officers limited their search to the targeted apartment8
and, because only one apartment was accessible from the
door through which they entered the building, there was no
risk that they might inadvertently have searched the wrong
unit. As a result, Detective Jimenez was not constitutionally
required to seek a modified warrant before continuing his
search of all three levels of Kelly’s residence.
C. Search of the Basement Duct
The parties dispute whether Kelly had a reasonable ex‐
pectation of privacy in the basement end of the duct. But
Kelly’s challenge to the officers’ recovery of the gun and
drugs from the duct fails under either theory.
8 Because they encountered Kelly upon entry, the officers immediately
confirmed that they were in the correct apartment.
20 No. 14‐1015
A “search” within the meaning of the Fourth Amend‐
ment occurs only where an individual has a reasonable ex‐
pectation of privacy in the area searched. Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). If
such an expectation is lacking, the individual has no stand‐
ing to challenge the search. See Simmons v. United States, 390
U.S. 377, 389 (1968). In United States v. Mitchell, we laid out a
series of factors relevant to this determination:
(1) whether the defendant had a possessory in‐
terest in the place searched; (2) whether he had
a right to exclude others from the place
searched; (3) whether he exhibited a subjective
expectation that the place searched [would]
remain free from governmental invasion; (4)
whether he took normal precautions to protect
his privacy; and (5) whether he was on the
premises legitimately.
64 F.3d 1105, 1109 (7th Cir. 1995). The district court conclud‐
ed, based on an analysis of the Mitchell factors, that Kelly
had no reasonable expectation of privacy in the front portion
of the basement. The owner of the building testified (via
stipulation) that the front section of the basement was con‐
sidered part of the front apartment and that the door be‐
tween the basement’s front and rear sections was supposed
to remain locked. The court determined that, as a tenant of
the rear apartment, Kelly’s Fourth Amendment rights were
not infringed when the officers searched the duct housed in
the front portion of the basement, and he therefore lacked
standing to challenge the officers’ actions.
Kelly insists that the district court erred in analyzing his
asserted expectation of privacy in the front portion of the
No. 14‐1015 21
basement rather than in the interior of the duct itself. He
claims a privacy interest in the duct because it was both at‐
tached to and accessible from his apartment, and because no
evidence indicated that it was used by anyone else. Yet
Kelly’s position—which the government contests—cannot
save his Fourth Amendment challenge. If we were to hold
that Kelly had a reasonable expectation of privacy in the
basement duct because it was attached to the apartment he
rented, we would be conceptualizing the duct as an exten‐
sion of Kelly’s apartment. And we have already determined
that the officers had in their possession a valid warrant,
which they executed reasonably, to search that apartment.
Because Kelly’s challenge to the recovery of contraband
from the basement duct is doomed regardless of which line
of reasoning we adopt, we need not determine whether an
individual is entitled to Fourth Amendment protection with
respect to an enclosed heating duct whose contents may only
be retrieved from an area in which that individual has no
expectation of privacy.9
9 Kelly also challenges the district court’s assumption that he abandoned
the firearm and drugs by throwing them into the duct. In order to
demonstrate abandonment, “the government must prove by a prepon‐
derance of the evidence that the defendant’s voluntary words or actions
would lead a reasonable person in the searching officer’s position to be‐
lieve that the defendant relinquished his property interests in the item to
be searched.” United States v. Pitts, 322 F.3d 449, 456 (7th Cir. 2003). Alt‐
hough Kelly claims that he threw the contraband into the vent only to
temporarily hide it from the investigating officers, his subjective intent is
irrelevant to the objective abandonment inquiry. We need not conduct
that inquiry here, however, because whether or not Kelly retained any
property interest in the discarded items, we hold that the officers’ seizure
22 No. 14‐1015
III. Conclusion
For the foregoing reasons, we AFFIRM the order of the
district court.
of the contraband from the basement duct did not violate his Fourth
Amendment rights.